from the why-we-can't-have-cool-things dept

In one of many Apple patent fights concerning smartphones, it went after Taiwanese smartphone maker HTC in both the courts and using the infamous ITC loophole that gives the company two separate cracks and blocking competition using the same patents. The ITC ruled in Apple's favor late last year, issuing its customary injunction (the ITC can only issue injunctions blocking import, rather than any monetary award). HTC was given time to create a fix, but the injunction has apparently gone into effect, and it means that the newest HTC phones -- eagerly awaited by some -- are being held at the border by customs to make sure that allowing them into the country won't violate the ITC injunction. It's pretty sad that Apple doesn't appear to think that it can actually compete on the merits in the marketplace, but rather has to resort to this sort of protectionism. Similar to Apple's complaints against Samsung, I have to admit that all this has really done is increase my interest in both the HTC One X and the HTC Evo LTE. If a smartphone is so good that even Apple is scared to compete against it, well, that seems like a phone that might be worth having...

from the can't-compete? dept

We've seen how Nokia's troubles in keeping up in the smartphone market have resulted in suddenly filing a whole bunch of patent lawsuits, including the big one against Apple over the iPhone. Of course, as usually happens in these types of situations, Apple fired back with a patent infringement lawsuit of its own against Nokia. Welcome to patent nuclear war.

And, of course, if you thought the battles would end there, you haven't been paying attention to how patent battles work these days. For years now, we've been pointing out that many patent holders actually get two cracks at companies over the same exact patents. They sue in the courts, and they use the ITC loophole to get a second crack, which could have even worse consequences. You see, the International Trade Commission is supposed to watch out for unfair trade practices. So many patent holders go to the ITC and claim that companies that infringe on patents are using unfair trade practices and should be barred from importing those goods into the US. Of course, the ITC could rely on the courts to determine if the products are actually infringing, but it does not. It decides for itself. And while the ITC cannot issue fines, it can issue an injunction barring the import of these products. With so many high tech products being manufactured overseas, this creates an effective injunction against selling many high tech products in the US... even as the Supreme Court has made clear that injunctions don't always make sense. But, the ITC is not bound by the Supreme Court on this and can do what it wants. A recent study has shown that this ITC loophole is frequently abused.

So, it's not at all surprising that (yes, indeed), Nokia has jumped in with both feet and has filed a complaint with the ITC as well over the Apple iPhone and its alleged infringement on Nokia patents. So now we have two totally seprate processes, either of which could conceivably bar Apple from selling iPhones in the US, just because Nokia's been too slow in coming up with its own iPhone competitor. That's not encouraging innovation at all. It's proactively trying to use the US government to slow it down.

from the loopholes-are-fun dept

A few months ago, we pointed out that since the Supreme Court made it clear that patent injunctions were being used too often, many companies were starting to use a loophole. Rather than just going through the courts to get an injunction, they would go to the US International Trade Commission and ask it for an injunction against those they accused of patent infringement. While courts need to follow the lead of the Supreme Court, the ITC could make whatever decision it wanted on whether or not a particular product actually did infringe and whether or not an injunction should be granted. It gives patent holders a second shot, outside of the court system, to get an injunction. In fact, right after we discussed this, Broadcom used exactly that loophole to get an injunction against certain Qualcomm chips. Qualcomm has been fighting this injunction without much luck, and it seems to have encouraged others to try the same thing. Nokia and Qualcomm have been engaged in a rather vicious patent fight recently -- and suddenly Nokia has come up with a strategy of (you guessed it) asking the ITC to ban the import of Qualcomm chips for patent infringement. Wonder where that idea came from? The folks at the ITC might want to start staffing up in the division that has to review these patent injunction requests. It sounds like there's going to be plenty to do in the near future.